Lazette v. Kulmatycki, —F. Supp. 2d—, 2013 WL 2455937 (N.D. Ohio June 5, 2013) When Plaintiff’s employment ended and she returned her company-issued Blackberry, she believed that she had deleted her personal email account. She was mistaken. Thereafter, her former supervisor, without her knowledge or authorization, proceeded to access and read her personal emails—48,000 of them—during… Continue Reading
PTSI, Inc. v. Haley,—A.3d—, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013)
Plaintiff sued its former employees after they opened a competing sports training facility. In the course of litigation, Plaintiff sought sanctions for Defendants’ alleged spoliation of ESI, including text messages. The trial court found that “the level of importance and complexity of the issues did not weigh in favor of imposing sanctions and that the deleted material was not relevant or important to its decision” and dismissed the claim for sanctions. On appeal, the appellate court found no abuse of discretion and affirmed the order.
Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479(SAS)(FM), 2013 WL 2951924 (S.D.N.Y. June 10, 2013)
In this case, the court considered Plaintiff’s “at least” negligent deletion of “the entire active email folder of an important witness–perhaps the key witness–at a time when [it] obviously knew that it might commence a lawsuit,” but declined to impose the requested adverse inference–or any sanction–absent a sufficient showing that “relevant information potentially helpful to [the defendants] [wa]s no longer available.”
Mali v. Fed. Ins. Co., 2013 WL 2631369 (2d Cir. June 13, 2013)
Here, the Second Circuit addressed the difference between an adverse inference instruction as a sanction and an instruction “that simply explains to the jurors inferences they are free to draw in considering circumstantial evidence” and determined that the at-issue instruction was not a sanction and that the trial court did not err. The instruction permitted jurors to infer that an unproduced photograph was unfavorable to Plaintiffs, provided they believed that the photograph was in the plaintiffs’ possession and that the non-production was not satisfactorily explained.
Giacchetto v. Patchogue-Medford Union Free School Dist., 2013 WL 2897054 (E.D.N.Y. May 6, 2013)
In this case, the court conducted a “traditional relevance analysis” to assess Defendant’s request for broad access to Plaintiff’s social networking accounts and concluded that only limited discovery was appropriate. Specifically, the court concluded that “unfettered access to Plaintiff’s social networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.” Thus, the court ordered Plaintiff’s counsel to review Plaintiff’s postings and to produce those determined to be relevant, “keeping in mind the broad scope of discovery contemplated under Rule 26.”
Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013) In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings. Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of… Continue Reading
Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., 2013 WL 2384235 (D. Idaho May 1, 2013)
In this case, a Special Master was directed to obtain ESI (more than one million documents) from a bankruptcy trustee, to review it for privilege, and to prepare a privilege log. The documents were screened utilizing keyword search terms. Upon production of the resulting privilege log, Defendants objected that the terms used were overly broad and that the log contained non-privileged documents. The Special Master therefore conducted an analysis of the terms used and made recommendations to address the objection.
Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013) In this case, the court considered Plaintiffs’ motion “to compel Defendants to meet and confer with respect to establishing an agreed protocol for implementing the use of predictive coding software” and for an order that if the parties could not agree on… Continue Reading
Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL 2251727 (N.D. Ill. May 22, 2013)
In this case, the court granted Plaintiff’s motion for an adverse inference instruction where Defendant failed to prevent the automatic deletion of relevant data despite notice of impending litigation and receipt of a specific preservation notice, sent directly to Defendant’s general counsel.
SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013) In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions. Upon… Continue Reading
EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL, 2013 WL 1960621 (Del. Ch. May 6, 2013)
Previously, the court ordered the parties to “retain a single discovery vendor to be used by both sides” and to “conduct document review with the assistance of predictive coding.” On May 6, the court entered a new order, stating that Defendants could retain their chosen vendor and utilize computer assisted review but that the parties would not be required to retain a single vendor to be used by both sides and that “Plaintiffs may conduct document review using traditional review methods.”
Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., —F. 3d.—, 2013 WL 1789728 (4th Cir. Apr. 29, 2013) In this case, the Fourth Circuit clarified “what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as ‘[f]ees for exemplification and the costs of making copies of any… Continue Reading
In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013) In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to… Continue Reading
W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, No. CIV. 11-2271 GAG, 2013 WL 1352426 (D.P.R. Apr. 3, 2013)
In this case the court addressed competing proposed protocols for the discovery of electronically stored information and declined to approve a provision that would require cost-shifting, among others. Notably, the court rejected the argument that the at-issue ESI was inaccessible (thus justifying cost-shifting) because the responding party did not show “that access to [the data] is hindered by any unique technological hurdles.”
Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013) In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account. Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled. Defendants sought production… Continue Reading
In what is possibly the final chapter to last year’s Da Silva Moore predictive coding saga, the Second Circuit has denied Plaintiffs’ petition for a writ of mandamus compelling the recusal of Magistrate Judge Andrew Peck. For those unfamiliar with the issues in this case, copies of the underlying decisions from both Magistrate Judge Peck… Continue Reading
In re Coventry Healthcare, Inc. ERISA Litig., No. AW 09-2661, 2013 WL 1187909 (D. Md. Mar. 21, 2013) In this brief opinion, the court considered Defendants’ claim that the burden of producing the requested ESI outweighed its potential benefit to the class action plaintiffs and granted Plaintiffs’ motion to compel. Specifically, Defendants claimed that Plaintiffs’… Continue Reading
EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH (D. Colo. Feb. 27, 2013)
Previously in this case, the court ordered broad discovery of the claimants’ social media, text messages and email. (See a summary of that opinion, here.) In this opinion, the court imposed sanctions for the EEOC’s actions which resulted in unnecessary delays and expense for the defendant, including actions related to the facilitation of the court ordered discovery. Notably, the sanctions were imposed pursuant to Rule 16(f), based on the Tenth Circuit’s “broader” interpretation of its application.
Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. 12-3427 (JLL), 2013 WL 541972 (D.N.J. Feb. 11, 2013) In this case, the court denied Defendant’s motion for a protective order “regarding the sixty-seven (67) electronic word searches” demanded by the plaintiff. It also denied Defendant’s request that the cost of running those searches be… Continue Reading
Gabriel Techs., Corp. v. Qualcomm, Inc., No. 08CV1992 AJB (MDD), 2013 WL 410103 (S.D. Cal. Feb. 1, 2013)
Following entry of judgment in their favor in this patent infringement case, Defendants filed a motion seeking attorneys’ fees, including $391,928.91 for document review conducted by an outside provider of discovery services and $2,829,349.10 “attributable to computerassisted [sic], algorithm-driven document review” utilized to reduce the number of documents requiring manual review. The court found these amounts reasonable and granted the motion in part. Ultimately, the court awarded Defendants a total of $12,465,331.01.
Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)
In this case, the court granted in part Defendant’s Motion to Quash upon finding that Google’s production of metadata related to communications containing certain search terms and production of subject lines would violate the Stored Communications Act (“SCA”).
Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013) In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and… Continue Reading
Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013) Upon receipt of “dueling letters” concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized “the need for counsel… Continue Reading
Peerless Indus., Inc. v. Crimson AV, LLC, No. 1:11-cv-1768, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013)
In this case, the court concluded that Defendants’ reliance on a vendor to accomplish collections from a non-party whose documents were in Defendants’ control was “insufficient” and granted Plaintiff’s motion for sanctions. Specifically, the court ordered Defendants to “show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located,” to “specifically verify what it is they cannot produce” and ordered Plaintiff to submit its bill of costs related to preparation of the motion.